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2013 DIGILAW 606 (PAT)

Sita Ram Ram v. Shambhu Nath Singh

2013-05-10

JYOTI SARAN

body2013
ORDER This civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 4.11.2010 passed by learned 5th Additional Munsif, Saran at Chapra in a case arising from Title Suit No. 73 of 1983 whereby the learned Court below has been pleased to order for eviction of the defendants, who are the petitioners before this Court and has further issued directions to the defendants for handing over the suit premises to the plaintiffs within a period of three months, failing which the same would be carried out by due process of law. 2. With consent of the parties the matter has been taken up for disposal at the stage of admission itself. 3. For the sake of convenience I shall be referring to the party position as it existed in the Court below. 4. Brief facts necessary for disposal of this case as set out in the plaint, is that defendant Nos. 2 and 3 who are petitioners before this Court had sold a mud built khapara pos house situated in Mohalla- Beradwari Ratanpura Katra within the Chapra Municipality in the District of Saran in favour of the plaintiffs under a sale deed executed on 23.12.1980. Although the plot over which the mud house was situated admeasured 1 katha but the sale was in respect of 15 dhurs of land over which the mud house was constructed. Consequent upon the sale, the possession was handed over to the plaintiffs who constructed a room thereon and on request by the defendants i.e. the petitioners herein and their mother let out the newly constructed room on a monthly rental of Rs. 15/- which commenced from September 1981 and a Kirayanama was also executed in respect thereof. 5. It is the case of the plaintiff that initially the defendants were paying the rent but they stopped making any payment since after January, 1982 and for which a legal notice was served upon them on 1.12.1982. It is further the case of the plaintiffs that apart from the said aspect since the plaintiffs required the room for their personal use and necessity, hence they requested the defendants to vacate the premise and upon their refusal to do so led to the filing of the suit. 6. It is further the case of the plaintiffs that apart from the said aspect since the plaintiffs required the room for their personal use and necessity, hence they requested the defendants to vacate the premise and upon their refusal to do so led to the filing of the suit. 6. There were three defendants to the suit i.e. mother Ram Dulari Devi and her two sons who are petitioners before this Court. Although the defendants filed their appearance before the trial Court but a written statement was filed only on behalf of the defendant No.1, Ram Dulari Devi, the mother of the defendant Nos. 2 and 3 after seeking leave to contest. The defendant No.1 had denied knowledge about the factum of sale deed dated 23.12.1980 stated to have been executed by the defendant Nos. 2 and 3 while also questioning the right of the said defendants to do so. She also denied any landlord tenant relationship between her and the plaintiffs and had maintained that she had exclusive right over the property. The defendant No.1 however, deceased during the pendency of the suit in 1996 and since the defendant Nos. 2 and 3 had neither sought leave to contest nor had filed any written statement except filing appearance, the suit proceeded ex parte and has been decreed by the judgment and order impugned and hence the present application. 7. Mr. Jitendra Kishore Verma, learned counsel for the judgment-debtor petitioners has questioned the judgment and order under challenge on the following grounds:– (a) A plain reading of the plaint would show that the eviction was mainly sought by the plaintiffs on grounds of default and the plea of personal necessity was taken as an additional ground. (b) With reference to the Full Bench judgment reported in 1991 (2)PLJR 1 (Ladu Gopal Kedia Vs. Bibi Jaibunissa) more particularly, paragraphs 9, 10, 38 and 40 and a Division Bench judgment reported in 1992(2) PLJR 111 (Shailendra Kumar Singh Vs. Kamla Singh and Ors.) it was submitted that as the eviction was sought on grounds of default hence the trial Court was required to try the suit by the general procedural governing a suit and not the special procedure and their failure to do so has rendered the judgment bad in law. Kamla Singh and Ors.) it was submitted that as the eviction was sought on grounds of default hence the trial Court was required to try the suit by the general procedural governing a suit and not the special procedure and their failure to do so has rendered the judgment bad in law. (c) The plaintiffs have not confined their grounds for seeking eviction to personal necessity alone rather eviction has also been sought on grounds of default requiring the disposal of the suit by adopting a general procedure. (d) With reference to the statement made in the plaint on the issue of cause of action, it is submitted that the cause of action is based on default and not on personal necessity. (e) With reference to the findings on the Issue No.3 relatable to the entitlement of the plaintiffs for a decree of eviction, it is sought to be canvassed that the very use of the words ‘grounds’ mentioned in paragraph 18 vindicates the stand of the defendant that the grounds were more than one. (f) With reference to the finding on partial eviction present at paragraph 20 it is submitted that the finding is vague and is not in tune with the judicial pronouncement on this aspect as reported in AIR 1994 SC 489 (Krishna Murari Prasad Vs. Mitar Singh) paragraph 3 and 1992 (2)PLJR 692 (M/s Bharati Pustak Kendra and Ors. Vs. Chhedi Lal Daruka) paragraph 21. (g) Learned counsel submitted that even if the plea of partial eviction was not raised by the defendants, the Court was under a duty to give a finding supported with reasons that the needs of the plaintiff could not be satisfied by partial eviction. 8. Mr. Verma, on the strength of the submissions taken note of hereinabove, sought to contend that the judgment in a suit based on grounds other than those found in Section 11(1)(c) and (e) having been tried under a special procedure prescribed under Section 14 is not only contrary to the statutory provisions but is in teeth of the judicial pronouncement and cannot be upheld. In continuation it is contended that even if the suit premise is a single room there cannot be a finding in favour of the plaintiff on the issue of partial eviction by pre-supposing his requirements rather the issue is required to be answered by reasons and which is missing in the present case. 9. The argument of Mr. Verma has been contested by Mr. Ambuj Nayan Chaubey, learned counsel for the defendant decree holders and who submits that the defendant Nos. 2 and 3 who are petitioners before this Court, having failed to take leave to contest from the trial Court and having been refused permission to adopt the written statement filed by the defendant No.1 by the trial Court and which order was affirmed by this Court, they have no locus to question the judgment and order under challenge. It is submitted that it is only the defendant No.1 who is the mother of the other defendants, who had filed a written statement and not the defendant-petitioners herein. It is stated that except questioning the sale made by the defendant Nos. 2 and 3 in favour of the plaintiffs on grounds of invalidity, no other objection as regarding the procedure adopted by the trial Court, was raised by the defendant No.1 as is being raised before this Court for the first time. It is stated that although the defendant No.1 deceased in the year 1996, the defendant Nos. 2 and 3 never chose to pursue the matter and for the first time they filed an application after 11 years on 13.6.2007 seeking leave to contest which was rejected by the trial Court by order passed on 13.9.2007 and which order was never questioned before a superior Court. It is stated that subsequently, another application was filed by the defendant Nos. 2 and 3 on 12.11.2007 seeking permission to adopt the written statement of defendant No.1 and which prayer again was rejected by the trial Court by order passed on 11.1.2008. It is stated that the said order dated 11.1.2008 was questioned by these defendants before this Court in C.R.No.1782 of 2008 and which was dismissed by this Court vide order passed on 10.11.2008. It is stated that the said order dated 11.1.2008 was questioned by these defendants before this Court in C.R.No.1782 of 2008 and which was dismissed by this Court vide order passed on 10.11.2008. The suit thus proceeded ex parte and even while the defendants were within their rights to question the procedure adopted by the Court below, no such objections were raised before the trial Court either by the defendant No.1 in her written statement or the defendant Nos. 2 and 3 during the course of trial. It is stated that the defendant No.1 had also filed a title suit questioning the sale deed giving rise to Title Suit No. 28 of 1982 and which was dismissed by the Sub Judge-I, Saran at Chapra vide order dated 19.8.1987 and which has attained finality. It is submitted that the defendant Nos. 2 and 3 who had executed the sale deed never chose to question the same either by pursuing the suit instituted by their mother or by filing an independent suit. It is thus submitted that where the sale in favour of the plaintiffs stands confirmed and the defendants never chose to raise any objections as to the procedure adopted by the trial Court or led evidence on partial eviction they are precluded to raise such issues before this Court in revisional jurisdiction. 10. I have heard learned counsel for the parties and have perused the materials on record. 11. One startling feature of the present litigation is that whereas there were originally three defendants to the suit i.e. the mother and the two petitioners herein, and all three of them had filed their appearance in response to the summons but it was only defendant No.1, Ram Dulari Devi who sought leave to contest and filed a written statement after such leave was granted. 12. The defendant Nos. 2 and 3 who are petitioners before this Court never chose to either seek leave of the trial Court to contest the matter or file any separate written statement. In fact on the failure of these defendant Nos. 2 and 3 to seek leave in terms of the provisions underlying Section 14(4) of the Act, the defendants really have no locus to question the judgment and order of eviction on merits. In fact on the failure of these defendant Nos. 2 and 3 to seek leave in terms of the provisions underlying Section 14(4) of the Act, the defendants really have no locus to question the judgment and order of eviction on merits. The conduct of these defendants has been noted by this Court while dismissing their civil revision application bearing C.R.No.1782 of 2008 questioning the order of the Court below rejecting their prayer for review of the order dated 11.1.2008. This Court has noticed that these defendants except filing appearance never came forward to seek leave to contest as mandated under Section 14(4) of the Act nor filed any written statement. A written statement was filed by the mother who deceased in the year 1996. Eleven years thereafter they filed first application on 16.6.2007 praying for leave to contest and which was rejected by order passed on 13.9.2007. Having failed in their attempt they filed another application on 12.11.2007 seeking permission to adopt written statement of their mother and which prayer again was rejected by order passed on 11.1.2008 inter alia on grounds that if these defendants were allowed to adopt the written statement, it would amount to granting leave to contest. Thereafter these defendants filed a third application praying for review of the order dated 11.1.2008 and which again was rejected by the order impugned in the civil revision application dated 21.7.2008. This Court thus taking note of the conduct of these defendants dismissed the civil revision application vide order passed on 10.11.2008 and which is reported in 2009(3) PLJR 281 . 13. The question which falls for consideration before this Court is that once these defendants have been refused leave to contest and have also been refused permission to adopt the written statement of their mother, do they have any locus to question the judgment and order under challenge on merits. The answer has to be in negative for the simple reason that the decree was passed uncontested and the party to the suit had waived his right to contest the same. The answer has to be in negative for the simple reason that the decree was passed uncontested and the party to the suit had waived his right to contest the same. However, considering the scope of revisional jurisdiction vested in the High Court in matters arising from judgment and orders passed under the Act, the only exception to this general proposition is, if the party complaining is able to demonstrate any violation of a statutory procedure by the trial Court or any perversity in the finding recorded by the trial Court. The term ‘perversity’ has been appropriately explained in a judgment of the Supreme Court reported in 2010(13) SCC 216 (Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors.) paragraph 28 of the judgment which is reproduced herein below:– “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha Vs. R. Vijaya Renganathan).” 14. Thus unless a defendant is able to demonstrate that the judgment and order impugned on the face is erroneous or is in violation of the express provision of the Act or is based on no evidence or the findings arrived is patently erroneous on the face of it and no prudent person would have arrived to such a conclusion, he cannot be permitted to assail the judgment on any other grounds. 15. Mr. 15. Mr. Verma, learned counsel for the defendants had primarily tried to question the judgment and order impugned on the procedural aspect, by submitting that as the suit was based on grounds of default also, hence in view of the judicial pronouncement, the Court below was required to follow a general procedure and that the finding on partial eviction is vague. 16. The twin grounds raised by Mr. Verma, does not hold any substance. Although the pleadings made in the plaint makes reference towards the failure of the defendants to deposit timely rent but the suit was primarily instituted raising plea of bona fide requirement and personal necessity. The reference to the non-payment of the rentals by the defendants is merely a circumstance but has not been adopted as a ground for eviction. The relief also has not been designed seeking eviction on grounds of default. 17. Be that as it may, the defendants having been refused leave to contest as also being refused permission to adopt the written statement, it becomes immaterial whether the trial Court proceeded with the matter under the special procedure or a general procedure, the only aspect relevant is whether by adopting a different procedure the trial court would have drawn any other conclusion or whether the procedure adopted by the trial court has occasioned in failure of justice. None of these circumstance exists in the present case. The contention of Mr. Verma that the suit ought to have been tried under a general procedure is again without substance for the reason that in absence of contest, the only procedure open for the Court below, was the procedure adopted in the present case. In so far as the issue of partial eviction is concerned, as no evidence was led by the defendants to demonstrate that the needs of the plaintiff could be satisfied by partial eviction of the defendants, the conclusion drawn by the trial Court on this issue also cannot be interfered with. The suit being of the year 1983 the defendants have engaged the plaintiffs in 30 years of litigation by raising frivolous issues. The suit being of the year 1983 the defendants have engaged the plaintiffs in 30 years of litigation by raising frivolous issues. The plaintiffs acquiring title of the suit property by virtue of a sale deed executed by these defendants, as back as on 23.12.1980, the bonafide requirement of the plaintiffs to enter and use the suit property for their own purposes has been thwarted by these defendants by keeping the litigation going on since last 30 years. 18. The issues raised by the defendants before this Court to question the order under challenge are without substance and another attempt by the defendants to delay the execution. 19. For the reasons aforesaid and finding no infirmity or jurisdictional error in the judgment and order impugned, I am not persuaded to interfere with the same. This civil revision application is accordingly dismissed with costs.